Taylor v. State , 35 Tex. 97 ( 1872 )

Ogden, J.

The appellant in this case was indicted in the district court for the murder of Morgan Evans, and at the June term, 1871, was tried and convicted of murder in the first degree, and has brought the case to this court for revision by an appeal. The assignment of errors and the record in the case present but two or three questions which are deemed of sufficient importanee to require special notice in the decision of this case,, as the others have heretofore been decided by this court, or are dependent upon the more important ones we now propose to notice.

It appears from the pleadings, that at a former term of the court the defendant had been indicted for the murder of 1ST. Evans; that he was placed upon trial, a jury was empanneled, and the evidence to sustain the charge was adduced, but failed to prove that any person by the name of 1ST. Evans had been killed; and after the opening argument of the district attorney anolle prosequi was entered, the jury discharged, and the defendant, by order of the court, was held to await the further action of a grand jury, who subsequently found another indictment against the defendant for the murder of Morgan Evans.

The defendant now claims that he had once been put in jeopardy for the same offense, and that by the provision of the Constitution of the United States and that of this State, he cannot now be legally tried upon the-charges in this indictment. That clause of the Constifution which declares, in effect, that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb, was carefully considered by this-court at the last term, in the case of Mosely v. The State,, in which we held that the clause of the Constitution referred to has “reference to the trial and verdict, and that no person can legitimately claim an exemption from a second trial under this maxim, unless he has. once been tried by a lawful jury, upon a good indictment, and acquitted or convicted.” We have carefully reviewed that case, and the authorities there cited, in connection with appellant’s brief in this case, and are still of the opinion that the question discussed with so much zeal and ability by counsel for the appellant was there-¡correctly settled upon the weight of authority. And ■though Mr. Bishop, in his valuable work on criminal law, seems to entertain a somewhat different view, yet he admits that there are many exceptions to his apparently rigid rule (Bishop’s Crim.‘Law, Vol. 1, pp. 661 to 668, inclusive), and even enumerates many instances where a party may be subjected to another trial after the cause has been submitted to a jury. And herein, it is believed, he recognized the true rule adopted by •Chancellor Kent and Justice Story, that a sound discretion must, of necessity, be left to the judge trying the .case to discharge the jury from giving a verdict, ‘ ‘ whenever there is a manifest necessity for the act, or the ends -of public justice would be defeated.”

But in the case at bar it might be denied, with much force, that the constitutional inhibition from putting a •person twice in jeopardy for the same offense, could be properly invoked in behalf of the appellant. In the ■first indictment he was charged with the murder of FT. Evans, and in the second with the murder of Morgan Evans. Certainly the indictments charge two separate and distinct offenses; and it might have been .claimed, with much plausibility, that the defendant should have been tried on both; that he might have been acquitted on the one and convicted on the other, .or acquitted on both, as the facts proven on the trials might have demanded.

For the reasons herein indicated, we think the court below did not err in overruling defendant’s motion to 'be discharged on his plea of former jeopardy.

Appellant also claims that the court erred in overruling his motion for a new trial, because the verdict of 'the jury was contrary to the evidence; that the testimony did not identify the dead body as that' of the •person charged to have been murdered. The identification of the body of the person charged to have been murdered, was a material fact to have been proven; and unless the jury were fully satisfied of that fact, from the testimony alone, they should have acquitted the defendant. The identification, however, was a fact to be proven as all other facts connected with the trial, and it might have been established by the same character of proof as the identity of the person killing, or the homicide itself; and indeed all the material facts should have been established by the very best testimony the' nature of the case was susceptible of; and if this rule was not observed in every particular, it was the duty of the judge to have granted a new trial. It was not necessary, however, that all the material facts necessary to constitute the offense charged, should be proven by the direct and positive testimony of eye-witnesses, of the -offense charged. But they might have been established to the satisfaction of the jury, and the court trying the case, by the proof of other facts and circumstances connected with and surrounding the terrible act, with nearly or quite as much certainty as by the positive testimony of such eye-witness. We are not aware that the law requires any more direct or positive proof, to identify the body of a murdered man, than it does to prove the murder, or to identify the murderer ; and yet all should be so completely proven as to leave no reasonable doubt in the minds of the jury, or they should acquit.

In the case at bar, there was no direct and positive proof of the identity of the body found, as the body of Morgan Evans, by any person who knew the deceased during his life, and saw the body after his death. But there was proof of a minute description of the body after death, and the father, who listened to the testimony, recognized it as a description of the body of his son. Both father and brother recognized the clothing, hat, and other articles found on or near the dead body. There were papers found on the person of deceased which had been given to a man calling himself M. Evans, but a short time previous to his death. The wagon and team found in possession of the defendant, and some portion of the loading of the wagon, were proven to have been M. Evans’s, a short time before, his death ; and even the dog on the premises of defendant was proven to have belonged to M. Evans. These and other circumstances were proven to the jury, to satisfy them that the murdered man was Morgan Evans. And we are not prepared to say that they erred when they found, by their verdict, that the identification had been proven.

Counsel for appellant complain that the court did not charge the jury in regard to a reasonable doubt. Such a. charge would certainly have been legitimate and proper, and particularly in a trial of so grave a character as the one at bar; and perhaps the court intended to give the-defendant the benefit of that charge, in his first charge to the jury. But the defendant can hardly complain now, as he failed to ask such a charge on the trial of the case. We cannot, therefore, decide that error (if error it was) sufficient to authorize a reversal of the judgment, and especially when we consider the character of the testimony before the court on the trial of the case. We have been unable to discover any error sufficient to authorize us in disturbing the verdict and judgment of the lower court; and it is affirmed.

Affirmed.